Volume 48 — North Carolina Reports

Assumpsit, tried before his Honor Judge Saunders, at the Eall Term, 1855, of Perquimons Superior Court.

Action on tlie case for a false warranty and for a deceit in the sale of a cask of French Brandy, tried before his Honor Judge Saunders, at the Fall Term, 1855, of Pasquotank Superior Court. On the trial, it appeared that the cask of brandy in question, had been shipped from New York for some southern port, on hoard of a vessel which was wrecked on our coast and sunk in the water.

Assumpsit, tried before his Honor Judge Saunders, at the last Superior Court of Pasquotank. The plaintiff declared for the non-delivery of a quantity of corn at Little River Bridge, and offered the following as the contract declared on, which is in writing, and is as follows: “ This is to certify, that I have this day sold John J. Grandy five hundred bbls. corn at three 25-100 dollars per bbl., to be delivered at Little River Bridge in clean and sound order, when called for.

Action on the case for a false warranty and deceit, in the sale of a negro woman and child, tried before his Honor Judge Saunders, at the Fall Term, 1855, of Camden Superior Court. Doctor Nixon, a witness for the plaintiff, deposed, that about a month before the sale to plaintiff, he had attended as a physician for about two weeks, the woman in question, while she was owned by the defendant, and that she had the dropsy.

Petition for tbe probate of a will in solemn form,' beard before bis Honor Judge Saunders, at tbe last Superior Court •of Currituck. Tbe petition was filed in tbe County Court, whence it was brought by appeal of defendant to tbe Superior Court. It sets forth that the petitioners are the next of kin of John Wheatly, who died in 1843, as they say, intestate.

Saunders, Judge. The appellant, Nancy Midgett, is a white woman, but her two children are mulattoes begotten by a negro father. The County Court made an order that these children should be bound to the defendant, who, it appeared, was a proper person in every respect to take such charge of them.

Aureal from the Superior Court of Currituck. This was a petition for a private way, heard before his Honor Judge Saunders, at the Fall Term, 1855.

Action on the case, tried before his Honor Judge Caldwell, at the Pali Term, 1855, of Martin Superior Court. The action was brought for the recovery of a quantity of shingles, and the only question brought to this Court is, whether the testimony of a deceased witness, given on a former trial of the same suit, could be proved by the notes of one of the attorneys in the cause?

Action of assumpsit, tried before his Honor Judge Saunders, at the last Superior Court of Washington County. The following facts were submitted to his Honor as a case agreed : The plaintiff is trustee, under a deed in, trust, executed by Pender & Carstarphin, partners in the business of merchandising.

Action or assumpsit, tried before Person, Judge, at the Fall Term, 1855, of Wayne Superior Court. The plaintiffs declared for the non-delivery of 600 barrels •of corn according to the terms of the following contract between them. The corn was to be delivered on board of a boat on Neuse River, for which plaintiffs were to pay $2.15 per bbi.

Petition for a certiorari, from Cumberland Superior Court Upon the facts set forth in the petition, writs of c&rliorcwi and supersedeas had ‘been issued in vacation, directed to the County Court of Cumberland, and to the sheriff of Bladen, and on being returned at Fall Term last, his Honor Judge Ellis presiding, a motion was made to place the cause on the trial docket, to be tried de novo, which was met on the other side, by a motion to dismiss the petition, on the ground,…

Action of detinue, tried before Ellis, Judge, at the Eall Term, 1855, of Sampson Superior Court.

<p>This was an action of detinue, tried before his Honor Judge Ellis, at the Eall Term, 1855, of Sampson Superior Court.</p> <p>The questions presented in this case arise upon the construction of the deed of gift from Daniel Merritt to Catharine Merritt, which is set out at length in the case preceding this, against the same defendant. The suit is brought by the administrator of the donor against the widow of the donor to compel her to surrender the slaves.</p> <p>It was contended on behalf of the plaintiff, that the reservation of the life estate to the wife, was a reservation to himself of the property, for her life, and that he having died leaving her surviving, the interest thus reserved belongs to him as the administrator of the said Daniel, and that the wife could take nothing. His Honor being of that opinion, so instructed the jury, who, accordingly, found a verdict for the plaintiff. Judgment and appeal.</p>

<p>Appeal from a judgment of the Superior Court of Perquimons County, affirming an order of the County Court of that county, allowing an amendment of a scire facias issued from a former term, Saunders J., presiding.</p> <p>The amendment proposed to be made, was of a scire facias to the heir-at-law of one Chalkley Evans, to show cause why a certain judgment in favor of one Nathan Elliott’s administrator, against the executor of Chalkley Evans, should not be satisfied out of the lands descended, and why the execution should not go against the same. The land of the heirs had been sold under a judgment upon this sci. fa., and the plaintiff was the purchaser. The sci. fa. was correct, except that the cause was set forth as follows : “ then and there to show cause, if any, why Nathan Elliott’s administrator shan’t have his judgment in a certain matter of controversy in said court depending, and then and there to be tried, wherein—-rendered to him against the lands of the deceased, in the hands of said heir for $8.6Tj¡- besides interest and cost.”</p> <p>The amendment proposed to be made is, to substitute as followsthen and there to show cause, if any, why Nathan Elliott’s administrator shall not have execution against the lands and tenements of the said Chalkley Evans, in the hands of the said Margaret Evans, on a certain judgment heretofore to wit, at August Term last of said court, recovered by the said Nathan Elliott’s administrator against the said Chalkley Evans’ executor for $8.67-£ his debt, $2.56 his damages and interest on said debt, &c., of wbicb he is convict as appears to us of record.”</p> <p>Tbe amendment was allowed in tbe County Court, and thereupon William Stanton and bis wife Margaret, (tbe above-mentioned Margaret Evans,) prayed an appeal to tbe Superior Court, wbicb was allowed, and in that court tbe judgment of tbe County Court was affirmed, whereupon tbe said William Stanton and wife appealed to this court.</p>

Action of ejectment, tried before bis Honor Judge Dick, at tbe Fall Term, 1854, of Washington Superior Court, on the following CASE AGREED. Aaron Spruill died seised in fee of tbe land described in the declaration, leaving seven children, bis heirs-at-law, upon whom tbe lands descended, and two of whom are tbe plaintiff’s lessors. The defendant was in possession at tbe service of tbe declaration.

<p>Action on tbo case for an escape of a runaway slave, tried before bis Honor, Judge Saunders) at Pall Term, 1855, of Robeson Superior Court.</p> <p>Tbis case was before tbe court at tbe June Term, 1855, (2 Jones’ Rep. 802,) and a venire de novo bavingbeen awarded, on tbis trial plaintiff declared for a breach of tbe contract of bailment at common law. He showed that he was the owner of the slave, George, in question; that he escaped from on board a steamboat on the Pee Dee river, in the month of January, 1853 ; that-soon afterwards he was apprehended in the county of Robeson, and delivered as a runaway to the defendant who was the sheriff of that county, who committed him to the jail of that county.</p> <p>It .was further proved, that the body of the slave, George, was found, about two weeks after being delivered to 'the defendant, in a well in the same county, with marks of violence upon it which produced his death.</p> <p>It was further proved, that the jail was, at the time the slave was committed! in such condition, that prisoners had repeatedly escaped, both before and after the commitment of the slave ; that he did escape in a few days after he was put in, and that this insecurity was known to the defendant. The next morning after the escape, the door of one of the cells was found to have been forced. An opening had been made through the wall of the jail by means of an iron spike or other piece of iron; the slave had gone out through it, and by means of blankets tied together, he had let himself down from the upper passage of the jail. The cell in which the slave had been confined was a dungeon, set apart for the confinement of slaves; it was in the upper part of the jail, and George had been put in there by himself; it had two doors in the same frame, one of oak and the other of iron. There was no evidence that the slave was chained, or any other means used to secure his safe keeping, than shutting him up in the prison; nor was there any evidence that any prisoner had ever escaped from this particular room, or that this room was less secure • than any other in the prison. It was proven that the defendant, as jailor, was in the habit of receiving pay for keeping runaways. The value of the slave was $100.</p> <p>The plaintiff’s counsel asked his Honor to charge the jury, that the defendant did not use due care in keeping the runaway.</p> <p>The court charged the jury, that as the slave had not been committed as a runaway, under tbe statute, the defendant, as^ sheriff, was not bound to receive him; but, having done so, he was bound for his safe keeping. At the time he was delivered to defendant, nothing was said as to how he should be kept, nor as to pay. The manner of keeping him was left to defendant’s discretion, and the law would give him for such service, what was just. The defendant, therefore, was a bailee for reward, and was bound to take such care for the safe keeping of the slave, as a prudent man would have taken for the safe keeping of Ms own property, and to have exercised reassonable diligence and care. Plaintiff says such was the state and condition of the jail, that defendant ought to have chained the slave, in order to his security. Defendant, says the slave was a mere runaway, not charged with any crime, and his confinement in the common jail of the county, was such care as he had a right to suppose would insure his safety. The court said he would leave it to the jury, as a question of fact, to pass on the condition of the jail. If they should find it so very insecure, as to render the chaining of the slave necessary and proper, under the circumstances, for his safe keeping, and common prudence would have suggested such a course, their verdict should be for the plaintiff. But if they should find such to be the condition of the jail, that a man of ordinary prudence would not have deemed it necessary, then their verdict should be for the defendant.</p> <p>To this charge plaintiff’s counsel excepted.</p>

Action of trespass gucwre clausum fregit, tried before liis Honor, Judge Bailey, at the Spring Term, 1855, of New Hanover Superior Court. The plaintiff claimed that he was in possession of the locus-in quo under one Herring, in whom was the title to the premises at the time of his conveyance to the defendant hereinafter mentioned.

Action of debt ,on a penal bond, tried before his Honor, Judge Ellis, at the last Fall Term of Moore Superior Court.

Action of detinue, tried before his Honor, Judge Dick, at the Eall Term, 1855, of Pitt Superior Court. Shortly after the marriage of defendant with Mary, the the daughter of plaintiff’s intestate, in the year 1839, the latter placed in the possession of defendant and his wife, several slaves, to wit: Nicey, Orange, Silvey, and Harriet.

This was an action of trover, tried before his Honor Judge Caldwell, at the last Fall Term of Alamance. The plaintiff claimed the property in question, (two mules,) as assignee, in trust to secure the debts of the Manteo Manufacturing Company, by a deed executed on 3d of November, 1855.

This was an action of quare clausum eregit, with a count for trespass vi et armis, tried before Dick, Judge, at the last Fall Term of Nash Superior Court.

Action of assumpsit, tried before his Honor, Judge Ellis, at the Pali Term, 1855, of Columbus Superior Court.

Action of trespass quare clausum eregit, tried before bis Honor, Judge Person, at tbe last Pall Term of Hyde Superior Court. Tbe plaintiff was tbe owner in fee of tbe locus m quo, and tbe trespass complained of was, tbat tbe defendant went on tbe land and removed a quantity of sawed timber left there by one Goff. There was evidence tending to show tbat at tbe time of this entry, one Sawyer was in possession of tbe land in question as a tenant at will of tbe plaintiff.

<p>Payments made by one of several obligors to a bond, in the absence of the other, before the expiration of the time necessary to create the presumption of payment, will prevent such presumption from arising, as well in respect of the absent obligor, as of him that made the payment.</p>

Scire facias to subject a sheriff as special bail, tried before his Honor, Judge Person, at the last Fall Term of Duplin Superior Court.

<p>Tins was an action on the case for a deceit, tried before liis Honor, Judge Person, at the Pall Term, 1855, of Wayne Superior Court.</p> <p>Tlie plaintiff had bought of the defendant a steam saw-mill at the price of 2,015, and was to pay him therefor in notes of the defendant, to be taken up by plaintiff. Notes of the defendant were taken up to the amount of $565, and the parties met in the town of Goldsborougli, to adjust the matter as to the remainder. Here tlie plaintiff entered into a penal bond of $2,000, with sureties, conditioned that the plaintiff should settle a note given by the defendant to the clerk and master in Equity of Wayne county, for the same saw-mill that he had sold to plaintiff, and which said note was represented as being for about $1,510, and not being yet due, could not then be taken up. It turned out that the amount of the note and interest due, and owing, when the said penal bond was given, was $ , instead of $1,510, and there was evidence tending to show that the defendant fraudulently represented said note to be $1,510.</p> <p>Tlie counsel for the defendant prayed the court to instruct the jury that the action could not be sustained, because the plaintiff, by reasonable diligence, could have ascertained the amount of tlie note. This question was reserved by the court, with leave to enter a nonsuit in case the court shoidd be of opinion against the plaintiff.</p>

Indictment for Murder, tried before Caldwell, Judge, at the last Fall Term of Rockingham Superior Court.

Issue of devisavit vel non, tried before his Honor, Judge Caxdwell, at the last Pall Term 6f Chatham Superior Court. The will of William Marsh, dated in 1835, with various codicils, all proved by the subscribing witnesses, there being two to each, was propounded. It was admitted that the supposed testator was of sound mind.

Scire facias to subject a sheriff as bail, tried' before his Honor, Judge Ellis, at the last term of New-IIanover Superior Court. Held: &c., recovered, &c., in a suit then and there prosecuted against the said Daniel Ilighmith of frespass on the case, whereof the said Daniel Highsmith was convicted, as, by the record of said' court, manifestly appears; and though judgment be thereof given, yet execution thereof remains to be made, or surrender the said principal into…

Attachment against tlie brig Marcellas, tried before his Honor, Judge Ellis, at the last Term of New Hanover Superior Court. This was an attachment sued out under the act of 1854, against the brig Marcellus, by the plaintiff, for work and labor done by him on said brig, as a ship-carpenter, at the instance of C. S. Ballance, claiming to be owner, and having the said brig in possession. The writ was returned to the County Court of New Hanover.

This was an action of detinue for slaves, tried before his Honor, Judge Ellis, at the last Superior Court of Duplin. The plaintiff declared for three slaves, and the following ease-agreed was submitted for the judgment of the Court. “The slaves were the property of one Robert Carroll, ■which he had acquired by his marriage with his wife Margaret.

Ejectment, tried before Ellis, Judge, at the last Fall Term of Eichmond Superior Court. The lessor of the plaintiff in this case, showed that he had leased the land in question to the defendant for a year, and at the end of the term demanded possession, which he refused to surrender.

Action on the case for fraudulently removing a, debtor out of the county; tried before his Honor, Judge Saunders, at a Special Term of Robeson Superior Court, December, 1855. Die plaintiff declared on two counts. IFwst, under tlie Statute ; secondly, at common law; for fraudulently removing one Daniel W. Rogers from tlie county of Robeson.

<p>An order of Court, authorizing a guardian to sell the land of his ward under the Act of 1789, (Rev. Stat. ch. 63, see. 11,) must find and adjudge that there are debts against the ward that render a sale necessary; but the amount of such debts, to whom due, or other particular description is not essential to the validity of the order.</p> <p>An order “ to sell the land of the ward named in the petition, adjoining the-lands of John Bailey and others, containing about one hundred and ten acres,” (it appearing that the ward had no other land) is a sufficient specific cation of the land under the Act of Assembly.</p>

Petition for certiorari, beard before bis Honor, Judge Dicic, at the last term of Wake Superior Court.

This was an action of Assumpsit, tried before Dick, Judge, at the last Fall Term of Martin Superior Court. The plaintiffs declared on a special agreement, which was, that the plaintiffs were to deliver to defendant in the town of Hamilton, Martin county, 510 bags suitable for holding peas, for which defendant was to pay fifteen cents each. Plaintiffs averred that they had delivered the bags according to the contract, and that the defendant had refused to pay for them.

This was an action of assumpsit, tried before his Honor, Judge Dicic, at the Pall Term, 1855, of Edgecombe Superior Court. The declaration was for goods, &c., furnished to defendant.

Tins was an action of trespass, tpiecl before Ms Honor, Judge Saunders, at the Fall Term, 1855, of Washington Superior Court. The case has been before tliis Court twice, formerly, and new trials granted. Vide 13 Ire. Rep. 146 ; Ibid 379. On the trial below, tlie plaintiff claimed title under a deed made by two Indian Chiefs, Saomusa and Longbord, executed in January, 1805, and conveying the land in question to John McCaskey for a term of years, ending in July A. D. 1916.

Action of ejectment, tried before his Honor, Judge Caldwell, at a special Term, June, 1855, of Stanly Superior Court.

<p>Action of ejectment, tried before his Honor, Judge Bailey, at the Spring Term, 1855, of Sampson Superior Court.</p> <p>The land in question was sold at sheriff’s sale, under an execution upon a judgment in favor of ¥m. A. Whitfield as relator, against the defendant Hatch Whitfield, who had been his guardian, and Lemuel Whitfield, and bought by Wm. A. Whitfield. The judgment was for the sum of $2,300, taken in the County Court of Wayne, and duly proved by the transcript of the record of that Court. The execution, the levy and sale by the Sheriff were also proved, and the plantiif produced the sheriff’s deed for the land in question. It was admitted on the trial, that this land was the property of the defendant in the execution, Hatch Whitfield, who is also the defendant in this action, and that he was in possession at the beginning of this suit. There were several coterminous tracts conveyed in the deed, amounting in all to about six thousand acres, and the whole was worth $12,000. The price bid and credited on the execution was $2,000. „</p> <p>The defendant resisted a recovery, upon the ground, that the sale was made void by the fraudulent conduct of the lessor of the plaintiff, Wm. A. Whitfield, in suppressing competí^ iion, and that the deed made in pursuance thereof was void, and passed no title. To support these positions, he examined several witnesses, viz:</p> <p>Eedar liaiford, who stated that on Wednesday of the term ■of Wayne County Court, the Sheriff, at the instance of Wm. A. Whitfield, sold the land en masse, he (witness) requesting him to sell in separate tracts, or sell the negroes, if he must have money; that Wm. A. Whitfield, before the sale of the land, in the presence of a number of persons there assembled, ■said he did not want any person to bid for the land, that he only wanted to bring his brother, Hatch Whitfield, (who was then in Mississippi, where he resided,) to a asettlement; and he feared if any other person bid off the land, he would not let him have it back; that he wanted Hatch to have the home place, and would sell the outskirts of the land to pay his debts. All this was said in the presence of the sheriff, and loud enough for him to hear it; but witness could not say whether or not he did hear it. lie further testified, that Wm. said, Lemuel had put money in Hatch’s hands to pay this debt, and he did not want Lem.’s property to be sold. The land was 2>ut up, and ho, (witness,) who was the son-in-law of Hatch Whitfield, bid §3,500 ; but he could not raise the money, and the land was resold, and bid off by Wm. A. Whitfield at §2,000, no person bidding against him. He further stated, that Hatch Whitfield had four or five slaves on the land, worth §1,500, besides stock, and other property; and that Lemuel Whitfield, the other defendant in the execution, owned several slaves, but was in failing circumstances.</p> <p>William E. Lane, stated that he attended the sale for the purpose of buying the land, and would have paid more for it than it was sold for, but did not bid, in consequence of the. declarations made by Wm. A. Whitfield, as proved by the other witnesses.</p> <p>John Liverett, stated that he heard Wm. A. Whitfield say, before the clay of sale, and at the time of the sale, that he did not want any one to bid for the land; he only wanted to buy , the land to bring his brother to a settlement, and that he would let him have it back. Lemuel II. Whitfield, the other defendant in the execution, begged Wm. not to sell the land; that if he must have money, to send for one of his negroes and sell him. He (Lemuel) further stated he had placed money in Hatch’s hands to pay the debt.</p> <p>Cabin Coor, stated (in a deposition) that he was the sheriff that sold the land; that he advertised it, and sold it at the court house in Wayne County; that there were many persons present, and that the sale was a fair one as far as he knew ; that he did hear Wm. A. Whitfield say, in one part of the transaction, that he would bid off the land as a brotherly act to bring Hatch to a settlement.</p> <p>There was no evidence of fraud or collusion on the part of the sheriff, or of combination with the purchaser.</p> <p>It was proved that about one-third of the land in question had been sold to the lessor of the plaintiff, B. L. Hill, by Wm. A. Whitfield, and that he had paid in cash for it $-.</p> <p>Upon these facts, his Honor charged the jury that, if Wm. A. Whitfield, the plaintiff in tire execution, made representations at the time of the sale of tire land, so as to induce persons who attended for the purpose of buying, not to bid, and thereby suppressed the bidding, and the representations were false, and in consequence thereof, persons did not bid, and he was enabled to buy the land, greatly under its value, for himself, and not for the defendant, Hatch Whitfield, the sale would be fraudulent and void, and the deed would pass no.title to the lessors of tire plaintiff. To this charge the plaintiff excepted.</p> <p>The remedy of the defendant if he have any, is in Equity. The sale here is under valid process, and there is no fraud or collusion between the sheriff, who is the authorised vendor, and Vm. A. "Whitfield, the purchaser. The execution of the official deed of the sheriff, therefore, conveys the title at law.</p> <p>It is contended that ¥m. A. "Whitfield committed a fraud, inasmuch as he did’ not. comply with his promise, which promise prevented competition at the sale. But that title either passed or it did not, at the instant of the sale, and the subsequent conduct of the purchaser could not reflect back and change the character of the sale.</p> <p>The title of Hill is good, both at law and equity. It is conceded that he was not privy to the fraud, if any there was; and being a bona fide purchaser, for value, and -without notice, he is protected.</p>

This was a scire facias against the defendant as sheriff of Cumberland, to subject him as special bail, tried before his Honor, Judge Ellis, at the last Superior Court of Cumberland. In a case in the County Court of Cumberland, wherein James II.

This was an action of assumpsit, tried, before his Honor, Judge Ellis, at the last term of New-JIanover Superior Court. The plaintiffs declared on the following promissory notes : “ “Wilmington, N. C., June 10, 1850. • “ $500.

Action of trespass guare clausum fregit for mesne profits, tried before Elias, Judge, at the Pall Term, 18ejo, of New Hanover Superior Court- Plaintiff showed in evidence a deed conveying the premises from one Bowen to Messrs.

Tins was an action of trespass, assault and battery, tried before Ellis, Judge, at the Fall Term, 1855, of New Hanover Superior Court. The plaintiff proved the assaiilt and battery; and there was evidence tending to show a mutual affray and fighting by consent. The defendant called upon his Honor to instruct the jury, ^ that if the parties mutually assented to, and participated in, a | breach of the peace, the plaintiff could not recover.

Action of trover for the conversion of a negro man, Bar-tee, with a joinder of a count in case, for seducing a slave to run away, tried before Ellis, Judge, at the Pall iferm, 1855, of Sampson Superior Court.

Action of ejectment, tried before his Honor, Judge Dick, at the special term (Nov. 1855,) of Moore Superior Court. • The plaintiff showed a grant from the State to one John Tyson, dated 30th of September, 1748, for the land in controversy ; also several mesne conveyances down to John Shearing, who, by deed dated 2nd of December, 1766, conveyed to Charles Shearing. The lessor of the plaintiff j>roved that he was the heir-at-law of Charles Shearing’.

This was an action of debt qui torn-to recover a penalty for violating tlie statute of usury, tried before his Honor, Judge Ellis, at the Spring Term, 1855, of Duplin Superior Court. The allegation in the plaintiff’s declaration was, that the amount loaned and advanced, was so loaned and advanced on the 31st of March, and forborne till the 1st day of April in the same year.

Issue oe fraud, underlie statute for tlie relief of insolvent debtors, tried before liis Honor, Judge Ellis, at the Spring Term, 1855, of Greene Superior Court. The plaintiff obtained a judgment against the defendant, in Greene County Court, for $142,67, and issued a capias ad satisfaciendum thereon.

<p>Parol evidence of the contents of a deed conveying a slave, is not admissible, if it was not proved and registered, although full proof has been made of the loss or destruction of the instrument, and proper notice given of the intention to offer secondary proof of its contents.</p>

Scire nacías against defendant’s intestate as special bail of one George Gwyer, tried before his Honor, Judge Person, at the Fall Term, 1855, of Duplin Superior Court.

Action of assumpsit, tried before Person, Judge, at the Pali Term, 1855, of Wayne Superior Court.

<p>Issue devisavit vel non, tried before his Honor, Judge Caldwell, at the Spring Term, 1855, of Johnson Superior Court.</p> <p>The script in question was offered for probate, as the last will and testament of one Mourning Kent, by Brittan II. Bottoms, her son-in-law, who is named therein as executor, and who, with his wife and children, are the universal legatees therein . The probate was opposed by Raiford Kent, on the ground, that the execution of the script was procured by threats of violence made by the propounder, and several witnesses were examined, whose testimony tended to show that fact. The propounder was then allowed to prove, that the deceased “ was a woman of independent mind, and firm in her purposes.” He also oflered to prove that he was “ a man of easy, quiet temper, and facile disposition, and therefore, not likely to exhibit the conduct charged.” This latter testimony was rejected by the Court. Eor this the propounder excepted.</p> <p>The jury found that “the script offered was not the last will and testament of the said Mourning Kent.”</p>

PETrnoN for damages against the 'owner of a mill, for ponding water and overflowing plaintiff’s land, and obstructing his mill-wheel, tried before his Honor, Judge Caldwell, at the Spring Term, 1855, of Franklin Superior Court.

This was an action of assumpsit, tried before bis Honor, Judge Hick, at the Fall Term, 1855, of Northampton Superior Court. The plaintiff declared on a special contract in assumpsit, and also on the common counts, and the question below was whether certain mill-irons, which had been procured by one William B. Jackson from the plaintiff, and which were used on the defendants’ mill, were properly chargeable to the said Jackson, or to the defendants, the owners of the mill.

Action of Tees?ass quare clausum eregit, tried ■ before his. Honor, Judge Dick, at the Pali Term, 1855, of Northampton Superior Court.

Petition for a Oertiorari heard before his Honor, Judge Dick, at the Pall Term, 1855, of Johnston Superior Court. The petition sets forth, “ that on 26 th of November, 1853, the petitioner, as the surety of one Joseph W. Price, executed ■with him, a bond for $196, payable to one John.

Indictment for unlawful retailing, tried before his Honor, Judge Dick, at the Pall Term, 1855, of Johnston Superior Court.

Action of assumpsit, tried before Ms Honor, Judge Dick, at the Spring Term, 1855, of the Superior Court of Chatham. The plaintiffs declared on a special contract to build a dam across Rocky river, and to cut a race, for $350. There was also a count for work and labor done. The contract, as above stated, was proved by one Benj.

Action on the case fpr the' obstruction of a right of way claimed by plaintiff, tried before liis Honor, Judge Caldwell, at the Fall Term, 1855, of Orange Superior Court. The plaintiff resided on the north side of Little Eiver, which stream divides his land from- that of the defendant, and the way, as claimed by him, runs through a ford on the river, and through the land of the defendant, to a public highway, called the Hillsborough and Oxford road.

<p>Tms was an action of assumpsit, tried before bis Honor ■Judge Saunders, at the Fall Term, 1855, of Tyrrel Superior Court.</p> <p>At the July Term, 1853, of Tyrrel County Court, the defendant entered into a contract with a majority of the justices of the peace of that County, then in Court, that he would do •certain additional work upon a house he was then building for the County, for the sum of $150, for which he received payment in advance. The work was not done, and this suit is brought for breach of that contract. The 'defendant was himself one of the justices of the peace of Tyrrel County, and was also present on the bench of the County Court, when the above contract was made.</p> <p>It was admitted that -damages for the breach of the contract were $119.</p> <p>The defendant’s counsel objected to a recovery, on the ground that the defendant was one of the justices of the County, and, therefore, that the contract was void.</p> <p>The action was brought in the individual names of all the .justices of Tyrrel, except the defendant.</p> <p>A verdict was taken for $119 damages, subject to the opin•ion of the Court on the question, whether the action could be maintained, with leave to set aside the verdict and enter a non-suit, in case the opinion of the Court was against the plaintiff. On considering the question reserved, the Court ordered a non-suit, from which plaintiffs appealed. •</p>

This was an action of detinue, tried before his Honor, Judge Caldwell, at the Pall Term, 1855, of Granville Superior Court. The plaintiff declared as the executor of Winfield Morgan, for the detention of three female slaves.

This was an action of assumpsit tried before his Honor, Judge Caldwell, at the Fall Term, 1855, of Caswell Superior Court. Plea, general issue. The plaintiff declared for the price of a crop of tobacco sold in 1852; also on the common counts. He also declared, on a special count, for a breach of contract.

This was an action of slander, tried before his Honor, Judge Caldwell, at the Fall Term, 1855, of Guilford Superi- or Court.

Issue, deviscmit ml non, tried before his Honor, Judge Saunders, at a Special Term (December, 1855,) of Granville Superior Court. Held: that such must be the position of the parties, that the testator should have it in his power to see the witnesses sign, and also to see the paper, so as to avoid imposition.

Action of ejectment, tried before his Honor, Judge Saunders, at the Spring Term, 1855, of Cherokee Superior Court.

This ivas an action of ejectment, tried before his Honor, Judge Saunders, at the Spring Term, 1855, of Cherokee Superior Court. The plaintiff declared on the same title as that set out in the preceding case, I)oo on dem. of Stanmire v. Taylor, and the matters relied on in defense are substantially the same also. The particulars in which they differ are noticed in the opinion of the court.

Action on the case for enticing away apprentices, tried before Bailey, Judge, at the Special Term of Buncombe Superior Court, July, 1855. The plaintiff declared for the loss of the services of three children of color, that had been bound to him by the County Court of Buncombe. These persons left the employment of their master, the plaintiff, and went into that of the defendant, who resided about twenty-five miles off, in an adjoining county.

Tins was an action on the case for a deceit in the sale of a tract of land, tried before his Honor, Judge Person, at the Fall Term, 1854, of McDowell Superior Court.

Ejectment, tried before his Honor, Judge Bailey, at tbe Special Term, July, 1855, of Buncombe Superior Court. Pleas: general issue, liberum tenementum and stat. lim.; and specially, a former judgment and recovery between the same parties, upon the same subject matter.

This was a scire ÉAcias to amerce the sheriff of Bladen county, for failing to return into the office of this Court, at June Term, 1855) a fi. fa. issuing from the same, in the case Of James E. Kea V. Jahiés A-.

Indictment for murder, tried before his Honor, Judge Saunders, at the Fall Term, 1855, of Perquimons Superior ‘Court. The circumstances of this case disclosed the fact, that the prisoner had shot an old free negro woman (aged about 601) in the eyes and face with a pistol. That about an hour after-wards he was found on a pallet with her, and there were indications that he had ravished her as she lay insensible. There was a jug of liquor on the same pallet.

<p>If a Judge, in charging a jury in a case of homicide, lay down a series of abstract propositions, some of which are not strictly applicable to the facts of the case, and there be error therein, which however, is corrected in a part of the same charge that applies those propositions to the facts, it is not a cause for a venire de novo.</p>

Indictment for murder, tried before his Honor, Judge Caldwell, at tlie last Fall Term of Granville Superior Court.

Tins was an indictment for the murder of one Himoncl, tried before his Honor, Judge Caldwell, at the last Term of Guilford Superior Court, to which it had been removed from the county of Rockingham. Dr. McOain swore that he examined the wounds of the deceased on Tuesday. His skull was broken behind—shattered for some inches, by a blow that must have produced instant death.

Action of detinue, tried before his Honor, Judge Caldwell, at the Pall Term, 1855, of Halifax Superior Court. The plaintiff declared for seven slaves; and the following facts were submitted as a case agreed, for the judgment of his Honor: “ George Zollicoffer died in the year 1802, leaving a last will and testament, by which he bequeathed among other be^ quests, as follows: Fourthly.

Action of Trespass, quare da-usum fregit, tried before his Honor, Judge Manly, at the Spring Term, 1856, of Currituck Superior Court. The defendant claimed title to the locus in quo, and offered a paper writing purporting to be a copy from the will-book, of the last will of Stephen Westcott.

Tms was an action of covenant, tried before bis Honor, Judge Manly, at tlie Spring Term, 1856, of Perquimons Superior Court. The action was brought ón a written covenant in relation to the superintendency and management of a saw-mill. The pleas were covenants performed, former suit, and recovery for the same cause of action.

<p>Appeal from the Superior Court of Washington, tried before his Honor, Judge Manly, at the Spring Term, 1856.</p> <p>This was a motion for judgment on a notice under the < statute, alleging breaches of the condition of a bond for the prison bounds.</p> <p>At the return of the notice the defendant had pleaded conditions performed, and not broken.</p> <p>The case being called for trial, the plaintiffs moved for execution, offering to show the Court the alleged breaches of tiie bond; but the defendant contended that the issues, involving matters of fact, should go to the jury.</p> <p>Hie Court being of opinion with the defendant, so ruled. Erom which judgment, plaintiffs, by leave of his Honor, appealed to this Court.</p>

This was an action of trover to recover the value of slaves Esther and Henry, tried before his Honor, Judge Caldwell,- • at the Spring Term, 1856, of Columbus Superior Court. The intestates of both plaintiff and defendant derived title to the slaves in question from one Washington Long. On the 23rd of June, 1849, he conveyed by deed of that date, to the former four slaves, to wit, Esther, Maria, ITenry and Sam, for the consideration expressed of $800.

At tlae return Term of an action of ejectment, motions were made on behalf of the respective parties, which were considered by Manly, J., at the Spring Term, 1856, of Perqmmons Superior Court The defendant’s counsel asked leave to plead upon filing an ordinary bail-bond.

This was an action of trespass on the case, tried before his Honor, Judge Manly, at the Spring Term, 1856, of Currituck Superior Court. The action was brought for obstructing a ditch which traversed the land of the plaintiff and passed through a part of the land of the defendant. Both these parcels of land had belonged to tbe defendant until the 9th of November, 1853, when he conveyed to plaintiff the part now in question, which was the upper part of the same.

Tins was an action of ejectment, tried before his Honor, Judge Manly, at the last Spring Term of Currituck Superior Court. On the trial, the plaintiff proved that the lands belonged to one Jesse W. Doxey, who, by his deed of bargain and sale, for the consideration of one thousand dollars, conveyed the same in fee to the lessor of the plaintiff and the defendant, as tenants in common, and this suit was brought to recover possession of a moiety.

This was an action of trover for the conversion of two slaves, Betsy and. Allen, tried before Ms Honor, Judge Saunders, at the Spring Term, 1856, of Lenoir Superior Court. This cause was before -the Court at June Term, 1850, and reported in lltli Ire. Rep. 80, as JBarwich v. Bwrwiok et at.

Action of ejectment, tried before his Honor, Judge Ellis, at the Fall Term, 1855, of Brunswick Superior Court. The lessors of the plaintiff are the heirs-at-law of one Kilby Register, who died about the year-, before the bringing of the suit. No grant from the State was shown by the lessors of the plaintiff, but to make good their title they showed that the defendant also claimed title through their ancestor, the said Kilby Register.

This was an action of debt against the defendant, who was lately the sheriff of Moore County, for an escape, tried at the Bpring term, 1856, of the Superior Court of that County, before bis Honor, Judge Caldwell.

This was an action of covenant, tried before his Honor, Judge Manly, at the Spring Term, 1856, of Washington Superior Court. The covenant declared on was an agreement, under seal, to take three negro slaves, Peter, Bhoden and Abbot, and to teách them the slwp-ca/rpenler’s and caulker’s trade. The breach alleged was, that the defendants had .not taught or caused to be taught the said slaves the trades, as stipulated in the contract.

This was a motion, upon notice to the defendant to show cause why a certain colored apprentice, by the name of Polly Gordon, should not be taken from him and bound to the plaintiff, heard before his Honor, Judge Manly, at the Spring Term, 1856, of Cam tuck Superior Court. On the return of the notice the County Court of Currituck granted the motion and awarded that the defendant should pay costs.

Tins was an action of ejectment, tried before Ills Honor, Judge Caldwell, at the Spring Term, 1856, of Stanly Superior Court. On the trial of the cause the plaintiff offered in evidence a copy of the last will of William Thornton, who resided, before and at the time of his death, in the District of Columbia; in and by which ho devised to his wife, A. M. Thornton, certain^ real estate in the County of Montgomery, now Stanly, a part of which is the subject of this suit.

Tuts was an action of assumpsit, tried before his Honor, Judge Saunders, at the Spring Term last, of Lenoir Superior Court. Plea, statute of limitations. The only question was, whether there had been a sufficient new promise to take the case out of the statute.

<p>This was an action of debt, tried before his Honor, Judge . Caldwell, at the Spring Term, 1856, of Montgomery Superi- or Court.</p> <p>The plaintiff declared on the following written contract: “ Received of E. Burrage one lease on the Eli Russell Mine, for which I agree to pay him three thousand dollars or return the lease in ninety days. Peb. 9th, 1851.”</p> <p>The plaintiff proved its execution and stopped his case.</p> <p>The defendant offered to prove that the lease on the Russell Mine was valueless, or of small value, insisting that the sum mentioned in the contract was a penalty. This evidence was rejected by the Court, for which defendant excepted.</p> <p>There was a verdict and judgment for $3000 and interest. Appeal by defendant.</p>

Action of trespass, q. c. f., tried before Caxdwell, J., at the Special Term (Eeb. 1856,) of Cumberland Superior Court.

Action of trover, tried before his Honor, Judge Caldwell, at the Spring Term, 1856, of Cumberland Superior Court. The action was brought to recover tlie value of a slave by the name of Pompey, which the plaintiff claimed title to tinder a deed executed by his father, Jonathan Jessup, on the 2nd day of January, 1851.

This was an action on the case, tried before his Honor, Judge Caudavell, at the Spring Term of BrunsAviek Superior Court, 1856. Plaintiff declared for a wrong and injury done him, by the defendants as inspectors of an election, in refusing to receive his vote.

Issue of fraud, tried before his Honor, Judge Manly, at the Fall Term, 185é, of New-Hanover Superior Court. The issue in this case was made up under the act for the relief of insolvent debtors. Afterwards, and while this issue vas standing on the docket for trial, the defendant procured the provision allowed to insolvents, under the act of 18é8, to be laid off to him. Ire. Dig. Man. cli. 32.

This was an action of assumpsit, commenced by warrant on a former judgment, before a Justice of tbe Peace, and brought by successive appeals to this Comt. On the trial below, before Judge Person, a former judgment rendered by a Justice of the Peace, against the defendants, was offered in evidence.

Appead from the last Superior Court of Duplin, tried before his Honor, Judge Saunders. This was an action of debt commenced by a warrant before a justice of the peace, and brought to this Court by successive appeals. The plaintiffs declared on a promissory note executed by the defendant Houston, Jesse Butts and William R. Rhodes to the plaintiff’s intestate, which became due in January, 1840.

<p>The master of a slave on trial for a capital felony, is a competent witness in his behalf.</p> <p>It is only where evidence is ruled out on account of the matter, and not where a witness is objected to and rejected on the ground of incompetency, that it is necessary to set out in the statement of the case, what the party expected or offered to prove.</p>

Action of trover, tried before his Honor, Judge Hick, at the Spring Term, 1856, of Chatham Superior Court. The action was brought bj the plaintiff as the executor of Mrs. Anne Gotten, for the conversion of a negro woman, Peggy, and her children. The mother of the slave, Peggy, was bequeathed to Mrs. Cotten by her husband, Eoderiek Cotten, who died in 1827. Mrs. O. was one of the executors of this will.

This was a petition for a writ of recordari, supersedeas and restitution, heard by Person, Judge, at Spring Term, 1856, of the Superior Court of Law for Pitt County.

<p>This was an action of ejectment, tried before Ms Honor, Judge Person, at the Special Term, July, 1856, of Brunswick Superior Court.</p> <p>The action was brought in the Superior Court of New Hanover, for a lot in the town of 'Wilmington, and removed, on affidavit, to this county. The lessors of the plaintiff claimed title to the land described in the declaration, through one Joshua Grainger, and offered in evidence a copy of a paper, that purports to be his last will and testament. This copy is certified by the Secretary of State as “ a true and perfect copy of a will, drawn off from the original on file in this office.” This instrument bears date 29th June, 1111, and is signed with the name and seal of J. Grainger, and purports to be attested by three witnesses.</p> <p>On the trial below, the defendant objected to the introduction of this paper, and his objection was sustained by the Court, whereupon the plaintiff submitted to a non-suit and appealed.</p> <p>The following is the 12 sec. of 41 chapter Rev. Code, passed in 1852 : “ Copies of wills filed or recorded in the'office of the Secretary of State, attested by the Secretary, may be given in evidence in any Court, and shall be taken as sufficient proof of the devise of real estate, and are declared good and effectual to pass the estate therein devised, in the same manner as if such wills had been duly proved and recorded in the County Court.”</p>

This was an action of assumpsit, tried before Person, Judge, at the Spring Term, 1856, of the Superior Court of Nash County. The plaintiff declared upon a special contract contained in the following letter from the defendant to him: “Tosnot Depot, N. C., July 14th, 1848. Dear Sir:—I wish you to procure me the testimony of Allen T. 'Williams’ marriage, in the State of Tennessee, previous to the year 1827.

Sci. ea. ; Orange Superior Court, Spring Term, 1856; Judge Dick, presiding. On the 20th of November, 1854, Eebecca Cate swore the child, of which she was pregnant, to Joseph L. Turner, who made up an issue as to the child’s paternity, and entered into bond, with sureties for his appearance at May term following.

Action of ejectment, tried before Saunders, J., at the last Superior Court of Beaufort. The sole matter in dispute between the parties, is as to the dividing line made between them in partitioning the lands which had descended to them and others as the heirs of John Gaylord. The plaintiff and defendant drew contiguous lots, and the point of beginning of their dividing line was not disputed between them.

Action of trespass q. c. e., tried before his Honor, Judge Dick, at the Spring Term, 1856, of Randolph Superior Court. The plaintiff gave in evidence the well of Gabriel Lamb, proved August, 1849, in which the land in question was devised to one Nathan Lamb, and a deed from him to plaintiff for the same, dated 11th March, 1850, and showed no other title. He showed that in the year 1851, he made and harvested a crop of oats upon this land.

Tins was an action of trespass, vi et armis, for taking and carrying away a number of shingles, tried before his Honor, Judge Caldwell, at the last term of Moore Superior Court. The shingles in question were made and left upon a tract of vacant land which adjoined the land belonging to the plaintiff.

This was an indictment for removing a fence, under tbe Act of Assembly of 1846, Eev. Code ch. 34, sec. 103, tried before his Honor, Judge Dick, at the last Superior Court of Davidson County. The defendant being the lessee of a field for a term of years, built a fence near the dividing line, between his land and the land of the prosecutor, which was then under cultivation, but entirely on his own premises.

Action of assumpsit, tried before his Honor, Judge Calx>well, at the last Spring Term of New-Hanover Superior Court. [Case agreed.] “ The action was brought against the defendant, as the administrator of ¥m. O. Lord, on a bill of exchange for $2000, drawn by the defendant’s intestate on the Contributionship Insurance Company of New York, dated in July, 1846, payable to the plaintiffs sixty days after date.

Tins was an action of assumpsit for goods sold and delivered, tried before Ellis, Judge, at the last Spring Term, 1856, of tbe Superior Court of Law for the County of Rowan.

<p>In an action of deceit in the sale of a slave, the plaintiff must prove the sale; and if tiie contract of sale be evidenced by writing, that must be produced and proved by the subscribing witness, of its absence accounted for.</p>

Action of ejectment, tried before his Honor, Judge Dick, at the Spring Term, 1856, of Stokes Superior Court. ‘ The lessors of the plaintiff showed title to the land in question, under one Hardy Ca/rroll, who was the trustee of the lessor, Jas. Eaton; they showed that the defendant claimed a right to the possession under one John L. Hitting, who professes to have bought also from Hardy Carroll, the trustee.

- Action of assumpsit, tried before his Honor, Judge Caldwell, at the Spring Term, 1856, of New-IIanover Superior Court. The plaintiff declared against the defendant as endorser of a bill of exchange, drawn by one McMillan on one lioth/well; and the only question in the case was, whether the notice was sufficient to subject the endorser. The facts were, that at the maturity of the bill in question, it was protested for non-payment by the acceptor.

<p>The Act of 1852, ch. 51, sec. 2, providing “ that the time during which the parties to a suit shall not have been resident in this State, shall not be given in evidence in support of the plea of the statute of limitations,” does not apply to, and revive, claims barred before its passage.</p>

<p>This was an indictment, tried before his Honor, Judge Dick, at the last Term of Guilford Superior Court.</p> <p>The charge in the indictment was, that the defendant having been deputed to serve a State’s warrant in a case of assault and battery, was further ordered by parol to take the prisoner to jail, which he failed to do, but voluntarily permitted him to escape. The jury below returned into Court the following special verdict: “That one Nathan Hiatt, an acting justice of the peace, in and for the County of Guilford, on the 20th day of July, 1854, issued a State’s warrant for an assault and battery against one James Wood, directed to any constable or other lawful officer, of said County, to execute and return; that on the 21st day of July, of the same year, Newell R. Sapp, another acting justice of the peace, in and for the said County, entered the following endorsement on the said warrant, viz: ‘Eor the want of a lawful officer, I depute E. S. Dean to execute the ■within warrant. Given under my hand and seal, this 21st day of July, 1854. Signed, N. R. Sapp, [seal].’ That the said E. S. Dean, by virtue of the said warrant and deputation, arrested the said Wood, and returned the said warrant with the defendant, Wood, before Arrington Dilworth, another acting justice of the peace, of the said County, on the same day; that on the way to the house of the magistrate, the defendant asked the said Wood what he would give him to keep him out of jail, in case the justice bound him over for his appearance at Court, when the said Wood told him he would give him four dollars, two dollars in cash, and his note for two dollars more; that evidence was taken before the said justice, of the guilt of the defendant; whereupon he was ordered to enter into recognizance in the sum of $25, for his appearance at the next Court of Pleas and Quarter Sessions, of Guilford County; that the defendant failing to enter into the above named recognizance, the said justice wrote the following mittimus on the said warrant, viz: To the jailor of Guilford County: You are hereby commanded to put into the common jail of Guilford County, James Wood, who fails to enter into recognizance as required above. Given under my hand and seal, this 21st day of July, 1854. Signed, A. Dilwortii, J. P., [seal] which said warrant, with the mittimus thereon, was delivered by the said justice to the defendant, Dean, with directions from the justice to take the said Wood and commit him to the common jail of said County, but that the said directions were not in writing, but by parol; that the defendant took the said Wood into his charge, together with the said warrant, and carried him in the direction towards Friendship, the residence of the said Dean, birt before arriving at that place, voluntarily released Mm, and permitted him to go at large out of his custody, upon his paying him two dollars in cash, and giving his note for two dollars; but whether the defendant is in law guilty, on the above state of facts, the jurors are ignorant, and submit the question to the Court,” &c.</p> <p>The Court being of opinion, upon the special verdict, that the defendant is guilty, gave judgment accordingly; and the defendant appealed to this Court.</p>

Action on the case, tried before his Honor, Judge Caldwell, at the Spring Term, 1856, of New-Hanover Superior Court. The declaration contains two counts against the defendant, as a constable, for misconduct in making sale of the plaintiff’s property under an execution.

<p>Wherever a duty is imposed by law, the performance of which concerns the public, the omission to perform that duty is an indictable offence.</p> <p>Where, by one clause of an act of assembly, the commissioners of a town are empowered and required to lot out the repairing of the streets-of such town to the lowest undertaker, and by another clause of the same, they are authorized to lay a tax for repairing- the streets, and the inhabitants of the town are, by the same act, exempted from working on the streets, it is not discretional with such commissioners whether they will let out the streets and lay the tax, but they are indictable for failing so to do.</p> <p>An indictment against commissioners of a town for failing to do their duty as such, during' a certain space of time therein set out, must aver the tenure and duration of their office. Therefore, an indictment which charges that they were commissioners on one particular day of the time alleged, during which they were delinquent, is defective; no judgment can be pronounced thereon.</p> <p>Where commissioners are authorised to raise money, by taxation, for repairing streets, and to expend it in a particular way to effect such repairs, that is, by letting out the work to the lowest undertaker, it is not sufficient to charge generally that they refused, and neglected to apply and expend the . money in repairing.</p>

<p>A justice of the peace has no authority under the Act of 1741, Rev. Stat. ch. 24, sec. 10, to appoint a special constable to execute a fieri facias.</p>

Action of debt,, tried before Person, Judge, at the last Spring Term of Edgecombe Superior Court. The plaintiff declared on a bond for the payment of money, purporting to have been signed by Joseph John Norcott, the intestate of the defendant, for the sum of $1080, dated 4th day of October, 1846.

Action of detinue, tried before his Honor, Judge Ellis, at the last Superior Court of Mecklenburg. The plaintiff claimed under a bill of sale, executed to him by David Simpson, embracing several slaves, including the one in question.

Action of detinue for two slaves, Dinah and Henry, tried before' Dick, J., at the last Superior Court of Orange. This case depends upon the construction of the will of Thomas Lashley, who died in 1824.

This was an action of bt, commenced by a warrant and brought to this Court by successive appeals: it was tried before Person, J., at the last Superior Court of Martin county.

Action on the case for false warranty and for a deceit. The plaintiff having proved the unsoundness of the animal in question, (a mare,) proved by one Seahorn, that, being a neighbor to both parties, he consented to be present at an interview between them on the subject of the trade.

Indictment for murder, tried before his Honor, Judge Ellis, at the last Superior Court of Union. There were three counts in the bill of indictment. The first, charging the defendant with feloniously killing his wife, by striking her with a stick, and by choaking, kicking and stamping her.

Detinue for slaves, tried before Dick, J., at the last Caswell Superior Court. The plaintiff read in evidence, the deposition of one Martha Bailey, as to the title of the slaves in question. The defendant offered to discredit this evidence, by showing that the deponent had made previous declarations inconsistent with the facts stated in her deposition.

Motion to dismiss a suit for the want of a prosecution bond, beard before Saunders, Judge, at the last Superior Court of Onslow. The writ was returned to the County Court of Onslow, without any prosecution bond, and the defendant moved to dismiss for that cause; the Court refused to dismiss, hut allowed the plaintiff to file a bond at tbat Court. The defendant appealed to tbe Superior Court, when, in that Court, it was moved to dismiss the appeal.

Action of trespass vi et cvrmis, for false imprisonment, tried before Ellis, J., at the last Spring Term of Rowan Superior Court.

Issue of devismit vel non, tried before Pick, Judge, at the last Superior Court of Chatham. The propounders offered the script as the last will and testament of one Elizabeth Straughan. The will purported to bear date in June, 1854, and the decedent died in the month next following. There were two witnesses to the will, one of whom, William G. Harris, was named the sole executor therein.

This was an indictment for murder, tried before bis Honor, Judge Person, at tbe Spring Term, 1856, of Pitt Superior Court. Tbe defendant was charged with tbe murder of Allen Green; and one John W. Forties was in tbe same bill charged as an accessory before the fact. The slave was tried alone. 1.

<p>The Ctli sec. ch. 36, of the Revised Code, making it a misdemeanor to “ pass and receive” bank notes under the denomination of three dollars, does not apply to the bank.</p> <p>The punishment intended against a bank, is a penalty of fifty dollars for making and issuing notes of less denomination than three dollars, under 3rd section of the Act.</p>

<p>Under the ch. 36, Rev. Code, an individual is indictable for passing or receiving, since the first of January, 1856, a Bank Bill, issued by the Bank of Fayetteville, of a denomination less than three dollars.</p>

Action of ejectment, tried before his Honor, Judge Person, at the Spring Term, 1856, of Warren Superior Court. Solomon Walker took possession of the land described in the declaration, under color of title, in 1790, and died in 1791, leaving an only son, John Walker, who continued in possession under his father’s title, until his death, in 1802.

This was a petition for the partition of slaves, heard before his Honor, Judge Person, at the Spring Term, 1856, of Pitt Superior Court.

Action of ejectment, tried before his Honor, Judge Saunders, at the Spring Term, 1856, of Craven Superior Court. The plaintiff claimed title under John Hill, and offered the copy of a grant to Hill for one hundred acres, dated in 1748.

Action of trover, tried before his Honor Judge Bailey, at the Spring Term, 1856, of Oleaveland Superior Court.

Tins was an action of assumpsit, tried before his Honor, Judge Bailey, at the Spring Term, 1856, of Eutherford Superior Court. The defendant owned a horse which he proposed to sell to the plaintiff for sixty-five dollars. The plaintiff agreed to take it at that price.

Action of slander, tried before his Honor, Judge Manly, at the Pall Term, 1855, of Buncombe Superior Court. Pleas,, general issue, statute limitations. The words charged to have been spoken by the defendant were in relation to the taking of a horse which had belonged to the plaintiff, which had been levied on by an officer and left in the custody of the defendant, and which the plaintiff had secretly taken from out of his possession.

Action of trover, tried before his Honor, Judge Ellis, at the Special Term, (June, 1856,) of Henderson Superior Court. Plaintiff declared for the conversion of a wagon. One Cook had formerly owned it; he loaned it to Eulton, the defendant, who was to use it and return it in as good plight as it was in when he received it. Cook sold the wagon to plaintiff, who demanded it of the defendant, showing him authorito from Cook to demand and receive it.

This was an action of debt, tried before Manly, J. at the Pall Term, 1855, of Macon Superior Court. The action was brought upon the official bond of the defendant as an entry-taker in the County of Haywood. Pleas, covenants performed, and not broken. The breach assigned was a refusal to take an entry tendered him by the relator.

Action of debt on a former judgment brought up to the Superior Court of Cherokee, by reoordari, from the judgment of a justice of the peace, and tried at the Fall Term, 1855, of that Court, before Manly, Judge. The following is a case agreed and submitted for the judgment of the Court. “The plaintiff had a magistrate’s judgment, dated in 1849, in his own behalf. A fi.fa. was issued thereon, and levied on a sorrel mare, as the property of the defendant.

Action of assumpsit, tried before his Honor, Judge Manly, at the Fall Term, 1855, of Henderson Superior Court. The suit was commenced by a magistrate’s warrant, and was brought up by successive appeals. The plaintiff declared on an unsealed note for $27, payable one day after date toBenajah Durham or bearer, and dated 21st November, 1813.. This note was transferred, without endorsement, to one- Hawkins, and in like manner from Hawkins to the plaintiff.

<p>Action of ejectment, tried before his Honor, Judge Manly, at the Eall Term, 1855, of Henderson Superior Court.</p> <p>The title of the plaintiff’s lessor consisted of a grant from the State for the land conrprised within the linos 23, 28, 7, 21, and thence hack to 23, in the annexed diagram, and showed the defendant in possession of the locus in quo.</p> <p>Tlie defendant showed title to the land contained in the figures 1, 2, 3, 4, 5, 6, and thence hack to 1, by a grant to one Jacob Shipman for three hundred acres, dated in 1794. The defendant also showed title to a tract of land of one hundred acres, lying south of the last'mentioned tract, granted to Edward Shipman, in the year 1802, which contains the following clauses in the description of it: “joining the lands he now lives on”—“beginning in said Shipman’s line of the land where he now lives,” which the defendant says, in the diagram, is about 6 or 28, (these lying close together,) “ and runs south one hundred poles to a black oak at a rock below a cliff,” (which is alleged to be at 8,) “ then west one hundred and fifty poles to a stake (10,) then north sixty-seven degrees west 115 poles to a stake,” (claimed by the defendant to be at 5, but by the plaintiff at 11,) “ thence with the said Shipman’s lino north eighty-two degrees east two hundred and ninety</p> <p> </p> <p>poles to the beginning.” There was no evidence of any marks or other indicia between the corners 5 and 6, but this was taken and considered in the case to be established as the true line of the three hundred acre tract. The call of this line in that grant is “ N. 82 degrees E. 300 poles to the beginning.</p> <p>The defendant contended for a beginning in the line 5, 6, and then to run round to 8, 9, 10, then the course and distance called for to 11, thence the nearest distance to the line 5, 6, then along it to the beginning. This running would include the locus in quo in the defendant’s title, and acquit her of the alledgod tresspass. The Court was of opinion that this was the proper way of locating that grant according to its calls, and instructed the jury to that effect. Plaintiff excepted.</p>

Action of trover, tried before bis Honor, Judge Manly, at the Fall Term, 1855, of Haywood Superior Court. This was an action of trover to recover for the conversion of ten sacks of salt.

Action of debt, tried before bis Honor, Judge Bailey, at the last Spring Term of Cherokee Superior Court. The plaintiff declared on a judgment rendered against the defendant in the Circuit Court of Blount County, Tennessee, in the year 1812, for $-. Execution issued on this judgment, ■ and all the defendant’s property was sold under it. The last execution issued returnable to Spring Term, 1813. Tho writ in this case ivas issued on the 13th of June, 1853.

Action of Assumpsit, tried before his Honor, Judge Manly, at the Pall Term, 1855, of Buncombe Superior Court. In 1842, William Woodard made his will, by which he gave all his property to his wife for her life, with power to dispose of the same, so as to be equally divided among their five children after her death, and appointed two persons as executors to the will.

This was an application to tlie County Court to have letters of administration set aside, heard before his Honor, Judge Saunders, at the Eall Term, 1854, of Ashe Superior Court; brought up by successive appeals. It was a contest for administration on the estate of Joseph Jinkins.

This was an action of ejectment, tried before his Honor, Judge Bailey, at the Spring Term, 1856, of Cherokee Superior Court. The plaintiff introduced a grant from the State for the land in controversy, dated February, 1852, and proved that the defendant was in possession.

Issue of dwisavit vel non, to try the validity of the will of Ephram Aminonds, before Manly, Judge, at the Pali Term, 1855, of Cherokee Superior Court. The instrument offered for probate appeared to be attested by the requisite number of witnesses, but one of them was, upon inquiry by the Court, pronounced- incompetent upon the score of his religious sentiments ; whereupon the propounders proposed to prove the paper as a holograph, according to the statute.

<p>A condition precedent in a bond for the payment of a subscription to rail-road stock, that the road is to be completed to a certain village, is substantially-complied with, when it is made to the suburbs of that village in such a manner as to bear daily trains on it, carrying all the freight and travellers that offer, although some portion of tire work is intended to be replaced with other and better materials.</p>

This was an action of covenant, tried before Manly, Judge, at the Eall Term, 1855, of Macon Superior Court.

This was a petition for damages against the proprietors of a mill, for ponding water back on the petitioner’s land, brought up from the County Court of Macon, by successive appeals, and tried in the Superior Court,, befbre Manly,. J., at the Fall Term, 1855.

Action of covenant, tried before his Honor, Judge Ellis, •at the Spring Term, 1856, of Gaston Superior Court.

Action on tiie case for a deceit in the sale of a slave, tried before his Honor, Judge Bailey, at the Spring Term, 1856, of Cleaveland Superior Court.

Action of trover, for the conversion of a female slave, tried before his Honor, Judge Manly, at the last Fall Term of Burke Superior Court. The action was brought in the name of Elijah Largent, a person of unsound mind, by his guardian, William Largent. Pending the suit, the plaintiff, Elijah Largent, died, and the said William and E. J. Largent administered on his estate, and were made parties.

Sciric Facias to make absolute an amercement nisi, heard before his Honor, Judge Manly, at the Fall Term, 1855, of Haywood Superior Court. The defendant pleaded nul tiel record; that he made due return of the process issued to him; and specially, that the return in the ease was made to, and received at, the return term thereof, and acquiesced in by the plaintiff.

Sbi. fa. upon an amercement nisi, tried before Manly, Judge, at the Ball Term, 1855, of Burke Superior Court. The allegation was, that a certain ji. fa. in favor of Charles McDowell against one J. R. Dyche, had issued from the office of the Supeiior Court of Burke.

Action of ejectment, tried before Bailey, Judge, at the Spring Term, 1856, of McDowell Superior Court. The land in controversy had belonged to John Duncan, who conveyed the same to A. L. Erwin, in trust, to secure certain debts due by him. The trustee made sale of the premises, when James II. Duncan, a son of grantor, became the purchaser, paid the purchase money, and took a deed for the land from the trustee, dated in 1838.

Action on this case for breach of a warranty of soundness of a slave, tried before his Honor, Judge Manly, at the Fall Term, 1855, of Buncombe Superior Court. The action was brought for the breach of a warranty of soundness of a negro slave named Lawson, contained in a bill of sale not under seal, dated 3rd of March, 1851.

This was an action for a deceit, in the sale of a jackass, filed before Ellis, Judge, at-the Spring Term, 1856, of Cabarrus Superior Court. The plaintiff offered one Cyrus Scott to prove the contract of sale. The defendant called testimony, and showed to the satisfaction of his Honor, that the proposed witness was a joint-purchaser of the property from Brown, and he was, therefore, pronounced incompetent.

Action on tub oasb, tried before Bailrt, Judge, at the Spring Term, 1856, of McDowell Superior Court. The plaintiff declared for a deceit in procuring a receipt from Ms intestate for a note of $321, which he held on Thomas Green, E. D. Lewis, and John Bright.

Action on tlie case for a malicious prosecution, tried before bis Honor, Judge Manly, at the Pall Term, 1855, of Henderson Superior Court. The declaration set forth an arrest of the plaintiff under the following warrant, taken out at the instance of the defendants, viz: “ State of North Carolina,) Henderson 'County.

Tins was an action of Assumpsit, tried before Ellis, Judge, at the last Wilkes Superior Court. The plaintiff declared for money had and received to her use. The proof was, that the plaintiff was the widow of an old soldier of the war of the revolution, and as such, had been put upon the pension-list under the laws of Congress; that there was due her from four to five hundred dollars of back-pay at the time her right was first allowed.

Action of assumpsit, tried before bis Honor, Judge Manly, at tlio Pall Term,-1855, of Cherokee Superior Court. The plaintiff declared for a balance due upon the purchase of a horse according to a special contract.

Petition for a legacy, tried before Manly, Judge, at the Fall Term, 1855, of Yancey Superior Court. Jonathan Tipton died in the year 1850, having made and published his last will and testament, wherein the defendants were appointed executors, who took upon themselves the administration of the assets.